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NAVY | DRB | 2004 Marine | MD04-00325
Original file (MD04-00325.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT


ex-PFC, USMC
Docket No. MD04-00325

Applicant’s Request
The application for discharge review was received on 20031210. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to St. Louis, MO. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:
Issue 1: “I am trying to better myself educational wise. Due to the fact that I gave money so I would be able to do so when I got out of the service (USMC), I have served more than 2 yrs consecutive active duty and I believe I am entitled to the money that I have given away to this program. When I was getting processed to be discharged which I really didn’t want to do. I wasn’t told that I would be forfitting my benefits. The only reason why I let them talk me into it was because my Wife at the time was having our baby and the baby was stillborn. At the time I had used up all my leave days and wouldn’t be granted any hardship leave either. Due to the fact that the base was closing and we were in the process of moving down to Pensacola FL. So I asked to have my orders changed to the MEPS in Chicago and I was denied by CWO4 M. R. S_. I wasn’t a bad marine I had numerous awards and accomadations to prove that. Starting from bootcamp to MATSG-90. Enclosed is a copy of my supporting documents. I had small problems but I was young and not truly focused on the task at hand. I was trying to reenlist but I need my RE code to be changed from RE-4 to RE-3 for that to happen, also that needs to be changed for me to utilize my Montgomery GI bill, and for me to take full advantage of all my VA benefits. Now Im trying to go back to school and take care of my family and learn a trade and not be another statistic in this world. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
300 PFT Certificate, dtd 18 November 1994
Promotion Warrant to Lance Corporal, dtd 1 May 1995
 Academic Course Summary
 Completion Certificate for Administrative Clerk Course 7-95
Meritorious Mast, dtd 2 December 1994
 Certificate of Commendation, dtd 10 August 1995
 Certificate of Superior Physical Performance, dtd 5 September 1995
Certificate of Superior Physical Performance, dtd 28 June 1996
 Certificate of Superior Physical Performance, dtd 21 November 1996
Second Promotion Warrant to Lance Corporal, dtd 1 December 1996

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
          Inactive: USMCR (J)               940805 - 940821  COG
Period of Service Under Review :
Date of Enlistment: 940822               Date of Discharge: 970215

 Length of Service (years, months, days):
         Active: 02 05 24
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 38
Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (7)                       Conduct: 3.6 (7)
Military Decorations: MeritM

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

950907:  NJP for violation of UCMJ, Article 121 (2 specs):
 Specification 1: Did … steal an Alpine Equalizer …
 Specification 2: Did … steal a Timex Indiglo Watch and two bottles of Jose Cuervo Margaritas …
 Awd red PFC, forf of $478.00 per month for 2 months, and 45 days restriction and extra duties. Red and forf susp for 6 mos. Not appealed.
950907:  Counseled for deficiencies in performance and conduct. [Misconduct which resulted in nonjudicial punishment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
Undated:         Counseled for deficiencies in performance and conduct. [Lack of discipline and poor judgment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950928:  Suspended punishment from 950907 NJP vacated.

950928:  Reduced to Pvt/E-1.
950928:  NJP for violation of UCMJ, Article 134: wrongfully broke restriction.
 Awd red Pvt, forf of $427.00 per month for 2 months, and 45 days restriction and extra duties. Forf susp for 6 mos. Not appealed.
960510:  NJP for violation of UCMJ, Article 134: wrongfully communicated … a threat …
 Awd red Pvt, forf of $100.00 per month for 1 month, and 20 days restriction. Red and Forf of $50.00 per month for 1 mo. susp for 3 mos. Not appealed.

 970107:  NJP for violation of UCMJ, Article 123 (2 specs):
 Specification 1: Did … with the intent to defraud, falsely change his LES rank to read E-4 vice E-2.
 Specification 2: Did … with the intent to defraud, falsely make in its entirety an LES ...
 Awd red PFC, forf of $228.00 per month for 1 month, and 14 days restriction. Forf of $128.00 per month for 1 month susp for 3 mos. Not appealed
970107:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by involvement of a discreditable nature with military authorities.
970107:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
970116:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was the Applicant’s “involvement of a discreditable nature with military authorities.”

970210:  SJA review determined the case sufficient in law and fact.

 970215:  GCMCA [Commander, Marine Corps Air Bases, Eastern Area] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970215 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).
Issue 1. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on four separate occasions, to include the appropriate retention and discharge warnings . The Applicant’s summary of service clearly reflects the disobedience of the orders and directives regulating good order and discipline in the naval service; thereby, demonstrating he was unsuitable for further service. An upgrade to honorable would be inappropriate. Relief denied.

T here is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Board appreciates the Applicant’s efforts to improve his life and encourages him to continue his efforts. At this time, the Applicant has not provided sufficient verifiable documentation to mitigate his misconduct while on active duty. Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits. This issue does not serve to provide a foundation upon which the Board can grant relief.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.
 
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 Aug 01.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 121, Larceny and wrongful appropriation; Article 123, Forgery; Article 134, Breaking restriction.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.
E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                   Naval Council of Personnel Boards
                   Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023      


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